THE

LIQUOR LICENSE ACT

OF THE PROVINCE OF ONTARIO.

Revised Statutes of Ontario, 1887.

CHAPTER 194,

Amended by 51 Vic. (O.), c. 3; 52 Vic. (O.), c. 41; 53 Vic. (O.), c. 56.

An Act respecting the Sale of Fermented or Spirituous Liquors.

ER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

1. This Act may be cited as "The Liquor License Act." (a.) R. S. O. 1877, c. 181, s. I.

(a) At common law the traffic in intoxicating liquors was a lawful business. The original of the Statutes licensing the traffic is found in 5 and 6, Edw. 6, (1552), c. 25.

By "The Taverns and Shop License Act of 1868," the enactments relating to Tavern and Shop Licenses were amended and consolidated and all acts inconsistent with it were repealed. This Act was afterwards amended by 33 Vic., c. 28, (0.) 1869 and 36 Vic., c. 34, (0.) 1873. These were all repealed and consolidated by 37 Vic., c. 32, s. 61, (0.) 1874, and further amendments were added by 39 Vic., c. 26, (O.) 1865-6 and 40 Vic., c. 18, (0.) 1877; upon the revision of the Statutes in the last named year, the whole were again consolidated in the R. S. O. 1877, c. 181; this was further amended by 41 Vic., c. 14, (0.) 1878, 44 Vic., c. 27, (O.) 1881, 47 Vic., c. 34, (O.) 1884, 48 Vic., c. 43. (O.) 1885, and 49 Vic., c. 39, (O.) 1886, and these enactments are now consolidated in the R. S. O. 1887, c. 194.

The Statutes now in force in Ontario are the R. S. O. 1887, c. 194; amended by 51 Vic., c. 3, (O.); 52 Vic., c. 41, (O.); and 53 Vic., c. 56, (0.)

The right of the Legislative Assembly to legislate in regard to licenses for the sale of intoxicating liquor and the regulation of licensed houses, as well as to vest in boards of License Commissioners, as appointed under the Act, authority to enact regulations of the same character, and to thereby create offences and annex penalties thereto, has been settled definitely in Hodge v. The Queen, 9 App. Cas., 117. It was previously decided that a general law as to prohibition respecting all Canada could be enacted by the Dominion Parliament: Russell v. The Queen, 7 App. Cas., 829. And it was subsequently held by the

Interpretation.

INTERPRETATION.

Where the following words occur in this Act, or in the schedules thereto, they shall be construed in the manner hereinafter mentioned, unless a contrary intention appears: "Liquors" 1. "Liquors" or "Liquor" (b) shall include all spirituous "Liquor." and malt liquors, and all combinations of liquors and drinks

and

and drinkable liquids which are intoxicating.

Privy Council that the Dominion Parliament could not legislate with respect to licenses for the sale of liquor in shops, taverns or saloons: In re Liquor License Act, 1883, and Amending Act, 5 C. L. T., 66; see also 5 C. L. T., 161, 6 C. L. T., 18. As to legislative authority see R. v. Burah, 3 App. Cas., 906; Jonas v. Gilbert, 5 S. C. R., 356; Easton's Case, 12 A. & E., 645; Saunders v. South Eastern Ry. Co., 5 Q. B. D., 462; The City of Fredericton v. The Queen, 3 S. C. R., 505; In re Slavin and The Cor. of Orillia, 36 U. C. R., 159; R. v. Justices of Kings County, 2 Pug., 535; Keefe v. Maclennan, 2 Russell & Chesley, 5; Blouin v. The Cor. of Quebec, 7 Que., L. R., 18; Cor. of Three Rivers v. Sulte, 11 S. C. R., 25`; R. v. O'Rourke, 10. R., 464; Dobie v. Temporalities Board, 7 App. Cas., 136; Cooley on Constitutional Limitations, 4th Ed., 77; Vattel, Bk. 2, c. 17, secs. 285, 286; R. v. Boardman, 30 U. C. R., 553; R. v. Scott, 34 U. C. R., 20; Re Hamilton v. North Western Ry. Co., 39 U. C. R., 93; Ont. Dig., 1882-1884, 116 et seq; Paulin v. The Cor. of Quebec, 9 S. C. R., 185; cited in R. v. Richardson, 8 O. R. 651; Foster v. Kansas, 112 U. S., 205; Boston Beer Co. v. Massachusetts, 97 U. S., 25, (U. S. Dig., 936); see also Danforth's Dig., 622; R. & J's. Dig., 3703, 4362, 4715; R. v. Taylor, 36 U. C. R., 183; R. v. Prittie, 42 U. C. R., 612; R. v. Lake, 43 U. C. R., 515; R. v. Lawrence, 43 U. C. R., 164; R. v. Cuthbert, 16 L J. N. S., 78; R. v. Black, 43 U. C. R., 180; R. v. County of Wellington, 17 App. R., 421; De St. Aubyn v. Lafrance, 2 Cart., 395; Blouin v. Corp. of Quebec, 2 Cart., 368; Keefe v. McLennan, 2 Cart., 400; R. v. Justices of Kings, 2 Cart., 499; Poulin v. Corp. of Quebec, 3 Cart., 230.

(b) Whether liquors are "spirituous or "malt" liquors is a question of fact, which it is better to have established by the evidence of a practical chemist; it is a matter for enquiry upon the evidence to be adduced before the justice or justices before whom a complaint is to be tried: Harris v. Jenns, 9 C. B. N. S., 152.

Sometimes there is much difficulty experienced in determining whether liquors are "spirituous" or not. See Sinclair's Con. D. C. Acts, 1888, p. 68.

Intoxicating liquors are defined by a statute of Kansas, as: "All liquors and mixtures, by whatever name called, that will produce intoxication." It was held there as a question of fact, that it did not embrace medicines and toilet articles not ordinarily used as beverages, such as tincture of gentian, bay rum and essence of lemon, although containing alcohol. Whether it embraces "McLean's Strengthening Cordial and Blood Purifier," (a mixture of whiskey, syrup of tulu and syrup of wild cherry), and "Sherman's Prickly Ash Bitters," is a question of fact. Whether any particular compound or preparation of this class is then within or without the statute, is a question of fact to be established by testimony.

It was held in Nevin v. Ludue, 3 Denio, 450, by Chancellor Walworth, of the State of New York, in a very learned and amusing judgment, that "spruce beer, ginger beer and molasses beer," may properly be termed fermented beer, but they are never considered "strong liquors or intoxicating beverages.' Ale and strong beer, in the same case, was held to be "spirituous liquors," but in People v. Crilly, 20 Barbour, 268; State v. Adams, 51 New Hamp., 568, and State v.

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Moore, 5 Blakf., 118, it was held that ale was not " spirituous liquor," because produced by fermentation and not by distillation. Ale, beer, porter, rum, gin, brandy, whiskey and wine" were held to be " intoxicating liquors": State v. Wittmar, 12 Missouri, 407. Lager beer is a "malt liquor": State v Goyette, 11 Rhode Island, 592; Watson v. State, 55 Alabama, 158. And it is a "strong and malt liquor," and is intoxicating: State v. Rush, Rhode Island, Sup. Com., 1881; State v. Campbell, 12 Rhode Island, 147. But it is for the jury to say whether it is intoxicating: Rau v. People, 62 N. Y, 277 It was held error for the Court to instruct the jury, that beer necessarily meant "a malt liquor State v. Breswick, Rhode Island, 1881, and that it was "purely a question of fact for the jury." See also Harris v. Jenns, 6 C. B. N. S., 152; Browne on Words, 143, 144, 205, 208.

:

It was held that "sweet spirits of nitre" are not spirits within the meaning of the excise acts, and that nothing can be taken to be "spirits," which does not come under the definition of an inflammable liquid produced by distillation, either pure or mixed only with ingredients, which do not convert it into some article of commerce not known in common parlance under the general name of 'spirits": per Pollock, C. B., in Atty-Gen'l. v. Bailey, 1 Ex., 281.

Spirituous means containing, partaking of spirit; having the refined, strong, ardent quality of alcohol in greater or less degree. Hence "spirituous liquors" imply such liquors as contain alcohol, and thus have spirit no matter by what particular name denominated, or in what liquid form or combination they appear. Hence also distilled liquor, fermented liquor, vinous liquor, are all alike, spirituous liquor. Lager beer and wine contain alcohol and generally in such quantities and degree as to produce intoxication. These liquors are therefore "spirituous": State v. Giersch, 37 Alb. L. J., 201. .This was in North Carolina. In West Virginia, however, a different view of the matter is taken, and it is held that the term does not include wine or other fermented liquor, for the words imply that the beverage is composed in part or fully of alcohol extracted by distillation: State v. Oliver, 26 W. Va., 422; S. C., 53. Am. Rep, 79.

In Eureka Vinegar Co. v. Gazette Printing Co., Circuit Court, E. D., Arkansas, June 30, 1888, it was held that cider was an alcoholic beverage obtained by fermentation of the juice of apples, and cannot lawfully be sold in a State whose Statutes prohibit the sale of alcohol, or any spirituous, ardent, vinous, malt or fermented liquors," 38 Alb. L. J., 267; and so also in State v. Hutchinson, 36 Alb. L. J., 498; but in State v. Oliver, 26 W. Va., 422, S. C., 53, Am. Rep., 677," cider and crab cider" were held not to be "spirituous nature as wine, ale, porter or beer." 38 Alb. L. J., 430.

nor of "like

Held, that defendant was properly found guilty of selling intoxicating liquor on proof of sale of a bottle of essence of cinnamon, and that the purchaser, after drinking it, had been so affected by it that he could not see after night: Johnson and Woods, J. J., dissent. State v. Muncey, 28 W. Va., 494.

'By no possible stretch of construction can 'confectionery' be held to include the selling of liquor by the drink :" City v. Jans, 34 La. Ann., 667.

A cordial made of whiskey sweetened and scented with peppermint and other things is a spirituous liquor. Godfrey's Cordial is a very different thing, known for and sold as medicine, and there can be no danger that the sale of it can promote tippling: State v. Bennett, 3 Harr., 565.

Although "Cronk" was sworn to be a kind of beer, the Court would not take judicial notice that it was intoxicating or spirituous: R. v. Beard, 13 0. R. 608.

The Court will not take judicial notice that gin is an inflammable liquid in the insurance sense of the word: Mears v. Humbolt Ins. Co., 21 Alb. L. J., 114. Gum-camphor and alcohol, sold as a medicine, is not within the Statute pro

hibiting the sale of "spirituous liquor," and providing that "all mixtures or preparations known as bitters or otherwise, which will produce intoxication," shall be deemed "spirituous liquor." In almost every home will be found the "camphor bottle," containing gum-camphor dissolved in distilled spirits, and used exclusively as a medicine and kept ready for use when needed, but unpalatable as a beverage and never used as such: State v. Haymond, 20 W. Va., 18 (1882).

Decoction of whiskey and bitter herbs, barks, etc., when intoxicating and used as a beverage is "spirituous liquor:" Wall v. State, 78 Ala., 417.

"Home Bitters," composed of thirty per cent. of alcohol and the rest of water, peelings, seeds, etc., sold as a medicine, although intoxicating was not "spirituous liquors " within the meaning of the law: King v. State, 58 Miss., 737. But in Arkansas, "Home Bitters" and "Home Sanative Cordials" containing twenty-two per cent. of alcohol were held to be within an act prohibiting the sale of ardent spirits and all compounds and preparations thereof: Gostorf v. State, 39 Ark., 450.

Lime-juice is the color of whiskey, and is made up of lime-juice, sugar, ginger and water, yet the Court strongly objected to country justices taking judicial notice that it is intoxicating or spirituous: R. v. Beard, 13 O. R., 608.

Medicated Bitters producing intoxication are "intoxicating liquors" within the meaning of that term as used in local option acts: James v. State, 21 Tex. App., 353.

One charged with the sale of malt liquor may be found guilty on proof of sale of "Phoenix," and proof that it is intoxicating: State v. Pfefferte, 36 Kan., 90.

An article called "Sunsmile," containing fifteen per cent. of alcohol and capable of producing intoxication, is an intoxicating liquor within the act: Prussia v. Guenther, 16 Abb., N. C., 230.

Generally, wine is an intoxicating liquor: State v. Packer, 8 North Carolina, 449. But not in Iowa, when made from native grapes, currants or fruits : Worley v. Spurgeon, 38 Iowa, 465.

Whiskey is "intoxicating": Egan v. State, 53 Indiana, 162.

It was held in Winning v. Gow, 32 U. C. R., 528, that "Old Tom Gin " was spirits. Spirits are spirits although diluted with water: Scott v. Gilmore, 3 Taunt., 226.

When strong drink ceases to be such and becomes medicine, is discussed in State v. Laffer, 38 Iowa, 422. See also Rogers' "Drinks, Drinkers and Drinking."

As to the word "liquor," Patterson, J. A., in Northcote v. Brunker, 14 App. R., at page 373, says: "As I read the interpretation clause in the Statute, the word 'liquor,' when used in the Act, not only comprehends intoxicating liquor, but is restricted to that meaning. It is to be construed to mean and comprehend all,' &c. The clause was the same in the Act of 1874, 37 Vic., c. 32; but most of the numerous clauses and all of the forms of the R. S. O., in which the word 'liquor' is used, without being qualified by the word intoxicating, come from the Acts of 1876, (39 Vic., c. 26) and of 1877, (40 Vic., c. 18). The word was not employed in the same general way in the Temperance Act of 1864, commonly known as the Dunkin Act, yet when that Act is referred to in the Act of 1876, sec. 27, its prohibition is said to be of the "sale of liquor." The R. S O., c. 181, is The Temperance Act of Ontario.' Like the Dunkin Act, it has a definition of 'Intoxicating Liquor,' but none of liquor' by itself. Yet we find in sec. 40 of c. 181, the word liquor,' used to denote liquors which it is made unlawful to sell without license under the Liquor License Act-meaning of course, 'intoxicating liquor." All spirituous and malt liquors are